Ahokghat, Kriti Tola v. P.S. Sahebpur Kamal, District
Case Details
1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.33655 of 2012 ====================================================== 1. Santosh Kuamr Singh , S/o Ram Bilas Singh. 2. Bandana Devi, W/o Santosh Kumar Singh. Both Resident of Village- Kasimpur, P.S. Muffasil, District- Khagaria. 3. Banti, S/o Krishna Rai, Resident of Village- Chakiya, P.S. Barauni, District- Begusarai. .... .... Petitioners. 1. The State of Bihar. 2. Kiran Devi, D/o Yogendra Mahto, R/o Village- Ahokghat, Kriti Tola, Versus P.S. Sahebpur Kamal, District- Begusarai. .... .... Opposite Parties. ====================================================== with Criminal Miscellaneous No.36182 of 2012 ====================================================== 1. Santosh Kumar Singh @ Santosh Singh, S/o Ram Bilas Singh. 2. Ram Bilash Singh, S/o Late Kari Singh. 3. Indu Devi, W/o Ram Bilash Singh. 4. Rupesh Kumar, S/o Ram Bilash Singh. 5. Bandana Devi, W/o Santosh Kumar Singh. All are resident of Village- Kasimpur, P.S. Muffasil, District-Khagaria. 1. The State of Bihar. 2. Kiran Devi, D/o Yogendra Mahto, Resident of Village- Ahok Ghat, Versus Kriti Tola, P.S. Sahebpur Kamal, District- Begusarai. .... .... Opposite Parties. .... .... Petitioners. CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 7 09-10-2013 1. The Criminal Miscellaneous Petition No. 36182 of 2012 has been filed for quashing the order dated 11. 05. 2010 taking cognizance under Sections 498A, 494/34 of the Penal Code in connection with Khagaria (Muffasil) P.S. Case No. 161 of 2 2010. The Criminal Miscellaneous Petition No. 33655 of 2012 has been filed for quashing the order dated 04. 01. 2012 taking cognizance under Sections 498A, 341, 323 and 494/34 of the Penal Code in connection with Khagaria (Muffasil) P.S. Case No. 09 of 2012. The informant in Khagaria (Muffasil) P.S. Case No. 161 of 2010 is Kiran Devi and the informant of Khagaria (Muffasil) P.S. Case No. 09 of 2012 is Sudhir Kumar, brother of Kiran Devi. 2. In Khagaria P.S. Case No. 161 of 2010, F.I. R. has been lodged on the basis of complaint filed by Kiran Devi bearing Complaint Case No. 520 C of 2010 for offence under Sections 323. 498A, 494, 120B of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act against accused Santosh Kumar Singh @ Santos Kumar Singh, husband, Ram Bilash Singh, father-in-law, Indu Devi, mother-in-law, Rupesh Kumar, dewar of the complainant, Rinku Devi, wife of Rajesh Singh, Rajesh Singh, son of Sagar Singh, Gautam Kumar Singh and Bandana Devi which was sent for institution of a case under Section 156 (3) of Cr.P.C. and F.I.R. was consequently lodged. 3. The prosecution case as alleged that Kiran Devi married with Santosh Kumar Singh in the year 2005. After 3 marriage, a demand was made for motorcycle and Rs. 50,000/- and demand continued at the time of Duragaman. In the year 2009, the victim was taken to Delhi with her husband and at Delhi it is alleged that Gautam Kumar Singh abetted the husband of the victim and the husband of the victim used to subject her to cruelty. Thereafter, the husband took the victim to her Sasural and all the accused persons at Sasural have subjected her to cruelty for non- fulfillment of demand. Thereafter, the victim was drive from matrimonial home when the victim was in family way. Subsequently, it was learnt that husband of the victim has married with one Bandana Devi, daughter of Krishna Rai, who happens to be sister-in-law (Sali) of Gautam Kumar Singh. 4. On the complaint petition, F.I.R. was lodged under Section 156(3) of Cr.P.C. and police after investigation submitted charge sheet on which cognizance has been taken against five accused persons who are petitioners for offence under Sections 498A, 494/34 of the Indian Penal Code in Cr. Misc. No. 36182 of 2012. 5. In Cr. Misc. No. 33655 of 2012 arises out of Khagaria (Muffasil) P.S. Case No. 09 of 2012 lodged on the basis of written report of Sudhir Kumar, brother of Kiran Devi, wife of 4 Santosh Kumar Singh, alleging therein that Kiran Devi was married with Santosh Kumar Singh, in the year 2005 and Santosh Kumar Singh remarried in the year 2010 with Bandana Devi, so Kiran Devi has filed a case in the court of Chief Judicial Magistrate bearing Khagaria P.S. Case No. 161 of 2010. It is further alleged that on 03. 01. 2012, the Chief Judicial Magistrate ordered the husband, Santosh Kumar Singh to live with Kiran Devi at his house. The order of the court was complied. In the same evening at about 7 P.M., husband Santosh Kumar Singh, Bandana Devi, Bunty, son of Krishna Rai, Indu Devi, wife of Ram Bilash Singh, and Ram Bilash Singh, assaulted Kiran Devi indiscriminately with intention to kill. On Hulla, several and villagers collected. The Mukhiya of the Village intimated the informant on telephone then informant reached there and took the victim at Khagaria hospital where she is being treated. 6. On the said written report of Sudhir Kumar, the informant, Station House Officer, Khagaria (Muffasil) P.S. forwarded the written report of informant, Sudhir Kumar for lodging of the F.I.R. for offence under Sections 498A, 494, 341 and 323/34 of the Indian Penal Code and on the basis of which F.I.R. lodged bearing Khagaria (Muffasil) P.S. Case No. 09 of 5 2012, dated 04. 01. 2012. The police after investigation submitted charge sheet for offence under Sections 498A, 341, 323 and 494 of the Indian Penal Code. Subsequently, cognizance has been taken for offence under Sections 498A, 341, 323 and 494 of the Indian Penal and Section 3/4 of Dowry Prohibition Act. After taking cognizance, two Criminal Miscellaneous petitions as stated above have been filed by the petitioners for quashing the order taking cognizance. 7. Learned counsel for the petitioners however contends that allegation made in the two F.I.Rs. are general and omnibus as there is no specific allegations against the petitioners, who are father-in-law, mother-in-law, dewar and one Bandana Devi alleged to be second wife of Santosh Kumar Singh in Khagaria P.S. Case No. Khagaria (Muffasil) P.S. Case No. 161 of 2010 out of which Cr. Misc. No. 36182 of 2012 arises. Whereas allegation made in Khagaria (Muffasil) P.S. Case No. 09 of 2012 is also general and omnibus that the petitioners are Santosh Kumar Singh, Bandana Devi, and one Banti, son of Krishna Rai, assaulted the victim wife Kiran Devi. However, relationship has not been disclosed, but it shows that this Bandana Devi, wife of Santosh Kumar Singh, dauther of Krishna Rai as apparent from the record. 6 It is further submitted that two cases have been filed, one by the victim, Kiran Devi, bearing Khagaria (Muffasil) P.S. Case No. 161 of 2010 and second case has been filed by Sudhir Kumar, brother of Kiran Devi, bearing Khagaria (Muffasil)P.S. Case No. 09 of 2012 for offence under Section 498A, 494 as well as 341 and 323 of Indian Penal Code has been added in the second case of Khagaria (Muffasil) P.S. Case No. 09 of 2012. It is submitted
Legal Reasoning
that two First Information Reports filed for the same offence under Sections 498A and 494 of the Indian Penal Code and hence it is submitted that second F.I.R. with regard to the same occurrence and act form part of same transaction, the second F.I.R. is not permissible and de novo enquiry with regard to same occurrence under Sections 498A and 494 of Indian Penal Code is not permissible and hence second F.I.R. and de novo investigation is required to be quashed. It is further contended second F.I.R. in respect of same offence and even different offence committing in same transaction is not permissible in law and hence second F.I.R. and order taking cognizance on the basis for fresh enquiry is required to be quashed. 8. Hence question for consideration whether criminal prosecution and order taking cognizance suffer from infirmities. 7 9. Learned counsel for the opposite party no. 2 however contends that allegation made in the complaint on the basis of F.I.R. was lodged make out an offence and occurrence with regard to Khagaria (Muffasil) P.S. Case No. 161 of 2010 is regarding subject matter of cruelty for non-fulfillment of demand and victim’s husband married with another lady, namely, Bandana Devi during subsistence of marriage with victim Kiran Devi and second F.I.R. i.e. Khagaria (Muffasil) P.S. Case No. 09 of 2012, is with regard to distinct offence dated 04. 01. 2012 and hence it cannot be said to be an offence on same fact. It is further asserted that second F.I.R. only in respect of same incidence or occurrence is barred and F.I.R. with regard to distinct or different occurrence is not barred and it is asserted that two occurrence are with regard to the different time and place of occurrence i.e. one of the year 2010 and other is of the year 2012 at different point of time after more than a year are separate and distinct offence and hence two F.I.R. is permissible and are not barred. 10. However, taking into consideration the respective submissions the fact that F.I.R. has been lodged on the basis of general and omnibus allegation and reliance has been placed in unreported decision in Cr. Misc. No. 10129 of 2011, dated 07. 11. 8 2012 by which order taking cognizance against some of the accused persons have been quashed and order taking cognizance against husband and second wife has not been quashed as there was allegation of subjecting cruelty and not giving food to them and causing physical and mental torture, in view of the fact the complaint case has been filed. 11. However, in view of respective submission, question for consideration whether order taking cognizance and criminal prosecution against petitioners are required to be quashed on the ground that allegations are general and omnibus in Fardbeyan and F.I.R. and cognizance having been taken on submission of charge sheet filed by the police report. The second point raised that whether second F.I.R. and order taking cognizance as well as criminal prosecution is required to be quashed. However, question for consideration whether the second F.I.R. is with regard to the same occurrence or different occurrence is same transaction is a question of fact. To consider it, it requires to go into question of the scheme of the Act regarding filing of first F.I.R. and investigation by the police. 12. Under the Code of Criminal Procedure when an Officer-in-Charge of police station received information regarding 9 commission of cognizable offence is require to enter the substance of allegation in a book kept by him and lodged the F.I.R under Section 154 of Cr.P.C. Section 156 of Cr.P.C. provides that “any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case”. Section 157 of Cr.P.C. provides that Officer-in-Charge shall forthwith send a report of the same to a Magistrate empowered to take cognizance and Sections 169, 170 as well as 173 of Cr.P.C. provides that the police to complete the investigation forward its report the same to the Magistrate to take cognizance of the offence and on the receipt of the police report under Section 173 of Cr.P.C. the Magistrate is empowered to take cognizance under Section 190 (1) (b) of Cr.P.C. and secure attendance of the accused by issuing process under Section 204 of Cr.P.C. Further Section 173 (8) of Cr.P.C. provides that police to make further investigation obtain further evidence, oral or documentary and forward further report to the Magistrate if fresh fact came to the knowledge or committed in same transaction not merely about cognizable offence reported in the F.I.R. but also with regard to other connected offence found to have been committed in course of same transaction or same occurrence. Hence police has got right to lodge F.I.R. to 10 investigate the case on information about cognizable offence and to submit charge sheet and if fresh material found then to make further investigation and submit a fresh report under Section 173 (8) of Cr.P.C. 13. However, in decision reported in 2001(6) (SCC) 181 (T.T. Antony Vrs. State of Kerala) it has been held that with regard to the same occurrence and same incidence (not a counter case) a second F.I.R. or fresh investigation based on second F.I.R. is not permissible and is liable to interfere with by Hon’ble High Court in exercise of jurisdiction under Section 482 of Cr.P.C. 14. However, now comes to fact and circumstance of the case at hand, the first F.I.R. is Khagaria (Muffasil) P.S. Case No. 161 of 2010 and the second F.I.R. is Khagaria (Muffasil) P.S. Case No. 09 of 2012 and the question is whether act alleged in second F.I.R. is with regard to the same occurrence or same incidence in regard to the same transaction or different offence committed in same transaction. However going into the question, first F.I.R. lodged on the basis of Khagaria (Muffasil) P.S. Case No. 161 of 2010 dated 19. 05. 2010 and it is alleged that complainant Kiran Devi was married with Santosh Kumar Singh and marriage was solemnised in the year 2005. After marriage, 11 she was subjected to cruelty for non-fulfillment of demand of Rs. 50,000/- and a motorcycle. Thereafter, it is alleged that demand continued and after “Duragaman” in February, 2009, the victim was taken to Kasimpur and there retain for sometime and she was taken to Delhi. It is further alleged that she was subjected to cruelty at Delhi by her husband at the abetment of one Gautam Kumar Singh and after two months, husband took her of his house i.e. at her Sasural and thereafter alleged that all the accused persons subjected her to cruelty to the victim for not giving Rs. 50,000/- and a motorcycle. The matter was intimated by the complainant to the Mukhiya of the village. It is further alleged by the informant that victim live with the husband as husband and wife and there was demand of Rs. 50,000/- and a motorcycle and when the accused persons learnt that victim has been pregnant then they drive her from matrimonial home. Thereafter, it is alleged that victim learnt that Santosh Kumar Singh has married with one Bandana Devi and on enquiry it was found to be true. However, even taken the allegation to be true on the face value there is allegation of subjecting cruelty for non-fulfillment of demand. But allegation regarding Bandana Devi is concerned, there is no allegation that Bandana Devi subjected the victim to 12 cruelty for non-fulfillment of demand or any demand. It is only alleged that Santosh Kumar Singh married with one Bandana Devi after the victim-wife, Kiran Devi was driven out from matrimonial house and went to Maika. However, even taken allegation true on face value no offence under Sections 498A and 494 of Indian Penal Code it not made out against Bandana Devi but offence under Sections 498A and 494 of Penal Code is made out. 15. Further on the complaint. Police lodged the F.I.R. and after investigation submitted charge sheet against all the accused persons and cognizance has been taken on the basis of police report and the Magistrate after taking into consideration the police report took cognizance for offence under Sections 498A and 494/34 of the Indian Penal Code. 16. However, second F.I.R. was lodged for offence under Sections 498A, 494, 341 and 323 of the Indian Penal Code on written report by Sudhir Kumar, brother of Kiran Devi specifically mentioned that marriage of the victim was solemnised in the year 2005 with Santosh Kumar Singh and Santosh Kumar Singh again remarried with Bandana Devi in the year 2010 for which case was lodged bearing Khagaria (Muffasil) P.S. Case No. 161 of 2010 and learned Chief Judicial Magistrate ordered on 13 03.01.2012 that Santosh Kumar Singh live with Kiran Devi at house and order was complied and in the same night occurrence took place. However, lodging of the case for offence under Section 498 A and 494 of Penal Code is second F.I.R. is on same fact as mentioned in first F.I.R., hence second F.I.R. with regard to offence under Section 498A and 494 of Penal Code are with regard to the same occurrence or same set of fact. However, offence under Sections 341 and 323 of Penal Code are in course of transaction that victim was taken to Sasural by her husband in pursuance of the order of the learned Chief Judicial Magistrate in a case bearing Khagaria (Muffasil) P.S. Case No. 161 of 2010 i.e. in the first case and subjected her to cruelty or assault. Hence under the fact and circumstance, the occurrence in second F.I.R. is with regard to the same occurrence under Section 498A and 494 of Penal Code or different offence under Sections 341 and 323 of Penal Code committed in course of same transaction when the victim was taken to Sasural by husband in same transaction as per order of the Chief Judicial Magistrate. 17. However taking into consideration of the fact and circumstance of the case, it is true that occurrence in the second F.I.R. is dated 04. 01. 2012, but the allegation with regard to 14 subjected cruelty after marriage since 2005 till 2010 when the victim was drive away from matrimonial home and second marriage was solemnised with Bandana Devi has also been alleged in the First F.I.R. and hence on the same facts or on different occurrence in same transaction second F.I.R. having been filed under Section 498A and 494 of the Indian Penal Code is apparently on the basis of same fact or different occurrence in same transaction as in the first F.I.R. 18. Hence having regard to the fact that occurrence in second F.I.R. is on the basis of same fact and subsequent incidence in same transaction then the second F.I.R. may not be permissible. The information given to the police about subsequent event on 04. 01. 2012 with regard to the occurrence dated 03. 01. 2012 then police was not require to register a fresh F.I.R. but he certainly had power to make further investigation and after collecting evidence during further investigation he was obliged to forward the further report in pursuance of his right of further investigation under Section 173(8) of Cr.P.C. Hence in that view of the matter, subsequent F.I.R. lodged in Khagaria (Muffasil) P.S. Case No. 09 of 2012 is not sustainable in view of judicial pronouncement in T.T. Antony Case as well as decision reported 15 in (2013) 6 SCC 348 (AmitBhai Anil Chanda Shah V. C.B.I.) where it has been held at para 37 “ This Court has consistently laid down the law on the issue interpreting the Code that a second F.I.R. in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution”. 19. The Apex Court relying on decision reported in 2011(5) SCC quash the F.I.R. and ordered that the charge sheet filed in pursuance of second F.I.R. to be treated as supplementary charge sheet. 20.Hence taking into consideration the fact and circumstance of the case and drawing analogy as the case at hand in the second F.I.R. the allegation is that marriage solemnised in the year 2005 of the complainant with Santosh Kumar Singh and she was subjected to cruelty by the accused and thereafter, Santosh Kumar Singh remarried in the year 2010 with one Bandana Devi and when the case was lodged, the learned Chief Judicial Magistrate ordered the husband of the victim to take the victim at his house and order was complied and after taking her she was subjected to cruelty. This same fact apparently alleged in the first F.I.R. Further, though, committing offence of assault at different 16 time and place on 03. 01. 2012, but it can well be inferred that different offence has been committed in course of same transaction. Hence second F.I.R. on the basis of same fact and same offence as well as different occurrence in same transaction. 21. Hence in view of this fact that second F.I.R. is not only impermissible but in violates Article 21 of the Constitution. However, on the same fact the police is not debarred for making further proceeding under Section 173(8) of Cr.P.C. Hence in that view of the matter second F.I.R. is required to be quashed and as a consequence charge sheet filed in pursuance of second F.I.R .to be treated as supplementary charge sheet in the first F.I.R. and taking cognizance on the basis of supplementary charge sheet and it is hereby ordered that second F.I.R. quashed and both the cases is clubbed together and charge sheet submitted in the second F.I.R. to be treated as supplementary charge sheet in first F.I.R. and trial of both the case shall be clubbed together. 22. However the second point raised that the allegations made in the F.I.Rs. are general and omnibus and cognizance have been taken on the submission of the charge sheet filed on the police report. However in the first information report of first offence i.e. allegation of demand of a motorcycle and Rs. 50,000/- 17 by all the accused persons. Further allegation that demand continued. Thereafter, it has been alleged that the victim was taken by her husband to Delhi and at Delhi there is allegation of subjecting cruelty at the instance of one Gautam Kumar Singh. Further allegation that after two months the victim again taken to the matrimonial home at Sasural of the victim and there is further allegation of subjected to cruelty and there is allegation that all the accused persons subjected her to cruelty by not giving food and then she was driven away from matrimonial home. However, allegation made against the petitioners are general and omnibus. The petitioners in the first F.I.R. are husband, father-in-law, mother-in-law and Dewar as alleged second wife of Santosh Kumar Singh. However, in the second F.I.R., it is alleged that victim was taken by the husband and there victim was assaulted by the husband, Bandana Devi and Banti. However, it is true that in the First Information Report there is allegation against these petitioners are general and omnibus, but the case initiated on the First Information Report and after lodging the F.I.R. the police investigate the case and police after investigation submitted charge sheet with report under Section 173(2) of Cr.P.C. and Magistrate took cognizance after perusing the case diary. The petitioners are 18 close relative like father-in-law, mother-in-law and dewar and they are residing along with the victim at Village- Kasimpur. However, regarding Bandana Devi is concern in the first F.I.R. i.e. Khagaria (Muffasil) P.S. Case No. 161 of 2010, there is no specific allegation nor even general and omnibus allegation against Bandana Devi for subjecting cruelty and the marriage alleged to have been solemnised after the victim was driven away from matrimonial home and hence it can well be inferred that no offence against Bandana Devi is make out. 23. However, relied upon unreported decision by the petitioners bearing Cr. Misc. No. 10129 of 2011, where petitioners case were quashed and in that case where son of the husband and other persons whose relationship was not mentioned. Further reliance has been placed on the decision reported AIR 2010 SC 3363 of Preeti Gupta case, where in the fact and circumstance of the case reported in Preeti Gupta case, the petitioners were residing at a far off place when the allegation was made and allegation was general and omnibus and no specific allegation and further decision relied upon arises out of complaint case. 24. However, having regard to the case at hand in which police after investigation has submitted charge sheet and 19 cognizance has been taken on the evidence collected and police during investigation submitted charge sheet on which cognizance has been taken. 25. Hence under the fact and circumstance of the case, at this stage I am not inclined to interfere with the order taking cognizance except the case of Bandana Devi in Khagaria (Muffasil) P.S. Case No. 161 of 2010. However, the petitioners have liberty to raise issue at the stage of framing of the charge and hence order taking cognizance against Bandana Devi in Khagaria (Muffasil) P.S. Case No. 161 of 2010 is quashed. However, as it is stated above second F.I.R. is hereby quashed, but charge sheet filed in pursuance of second F.I.R. be treated as supplementary charge sheet in the first F.I.R. and taking cognizance on the basis of charge sheet submitted in the second F.I.R. be treated as cognizance taken on supplementary charge sheet in the first F.I.R. and trial of both i.e. cognizance taken on first F.I.R. and cognizance taken on charge sheet in second F.I.R. treated as supplementary charge sheet of first F.I.R. shall club together and trial shall proceed accordingly.
Decision
26. With this observations, two petitions stand disposed off. m.p. (Gopal Prasad, J)